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This paper is about appearance and consequences of non appearance of the parties.
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The provisions of the Code of Civil Procedure, 1908 are based on the fact that it is the duty of the concerned party to be aware of his rights, show vigilance towards the court and establish his or her claim by taking the appropriate measures. The general provisions contained in the Civil Procedure Code of 1908 is based on the principle that no proceedings which are detrimental to the interest of any of the parties to the suit shall be conducted in the court of law. It is the duty of the parties to the suit to show presence before the court of law on a due date which has been fixed by the court. In legal terms, the word “appearance” means the appearance of a person through their advocate in order to conduct the proceedings in court. Appearance and non-appearance of the parties in a civil suit is the important factor upon which the fate of any case depends. There have been times when the person against whom the case has been filed may not appear in the court even after the issuance of summons against the person. A mere non-appearance of a party in front of the court on a determined day has an adverse effect on the party that does not appear and the judgement of the court may turn in favour of the party appearing in front of the court. However, in situations where a suit is determined irrespective of the fact that any of the parties to the suit are absent on the due date. Then, the non-appearing party in order to safeguard its interest can revive the suit by following the provisions of Civil Procedure Code, 1908. Laws regarding the appearance of the parties and the consequences in case of non- appearance of parties are contained in the Order IX of Civil Procedure Code, 1908. It also provides a remedy for sitting aside an order of dismissal of the suit as also the setting aside of an Ex-parte decree passed against the defendant. The law with regard to the appearance of the parties to the suit and the consequences of non-appearance of parties to the suit under the Order IX of CPC are as follows: Rule 1 and Rule 12 – Appearance of the parties. Rule 2– The consequences of non-deposition of fees by the plaintiff. Rule 3 and Rule 4- The consequences of non-appearance of both the parties to the suit.
In the leading case of Sangram Singh v. Election Tribunal^1 , the Supreme Court ruled that the words “court may proceed ex parte” is an enabling provision and not direction to the court to proceed ex parte. A general rule founded on the principles of natural justice is that proceedings in a court of justice should not be conducted behind the back of any party. The discretion conferred on the court has to be judicially exercised. Therefore, the court should exercise this power in accordance with law keeping in view the principal of natural justice and fair play. This provision applies only for the first hearing and not for the subsequent hearings of the matter. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears. RULE 10 Where there are two or more plaintiffs and one or more of them appear and the others do not appear the court may permit the suit to proceed as if all the plaintiffs had appeared, or make such order as it thinks fit. THE APPEARANCE OF DEFENDANT RULE 8 Where the defendant appears and the plaintiff does not appear, and the defendant does not admit the plaintiff’s claim, wholly or partly, the court shall pass an order dismissing the suit.” If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when the defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a decree against the defendant on the ground of such admission and for rest of the claim, the suit will be dismissed. Where a party against whom an order is made appears on the same day and prays for recalling of order, normally, the prayer should be granted by the court. Rule 8 will apply to a case where there is only one plaintiff and he does not remain present, or there are two or more plaintiffs and all of them remain absent. Where there are more plaintiffs than one, and one or more of them appear, Rule 10 will apply. 1 AIR 1955 SC 425.
Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of action. He may, however, apply for an order to set aside the order of dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance the court may set aside the order of dismissal and fix a day for proceeding with the suit. Where there are two or more defendants and one or more of them appear and the others do not appear, the suit will proceed and at the time of pronouncement of the judgment, the court may make such order as to the absent defendants as it thinks fit.26 In such a case, a decree may be contested as one against some of the defendants and ex parte against the rest. RULE 7 Where the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, the court may hear him upon such terms as it directs as to the costs or otherwise” It has been held that Rule 7 of Order 9 is directed to ensure orderly conduct of proceedings by penalising improper dilatoriness calculated merely to prolong the litigation.^2 NON APPEARANCE OF BOTH THE PARTIES Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither the plaintiff nor the defendant appears when the suit is called out for hearing, the court may dismiss it. Dismissal of suit for non- prosecution or for non-appearance of plaintiff does not amount to “decree”, and is, therefore, not appealable. The dismissal of the suit under Rule 3 does not bar a fresh suit in respect of the same cause of action. The plaintiff may also apply for an order to set aside such dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with the suit. In Arjun Singh V. Mohindra Kumar & Ors^3 , the apex Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good 2 Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. 3 AIR 1964 SC 993
and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi-parte decree and it has all the force of a valid decree.^6 Remedies The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:
Sufficient cause The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to be determined in the facts and circumstances of each case. The words “sufficient cause” must be liberally construed to enable the court to exercise powers ex debito justitiae. A party should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part. Necessary materials should be placed on record to show that the applicant was diligent and vigilant. Sufficient cause: Illustrative cases The following causes have been held to be sufficient for the absence of the defendant;
However, order 47 of the Civil Procedure Code provides for the limitations and conditions with respect to the review of the cases. The Supreme Court Rules, 1966, provides that the limitation period for filing a review petition against any decision passed by the court is 30 days from the date of passage of such an order. Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also file an application for review if the conditions laid down in Order 47 Rule 1 are satisfied. Suit A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. It is settled law that fraud vitiates the most solemn transactions. In such suits, the onus is on the party who alleges that the ex parte decree passed against him was fraudulent. CONCLUSION The appearance and non-appearance of parties have an effect on the case and whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none of the parties appears then the suit can be dismissed by the court. The suit is carried on for the next hearing only when both parties appear before the court. If the plaintiff appears before the court but no defendant appears on the day of hearing then the court may pass an ex-parte decree against the defendant. The situations when there is non- appearance on the behalf of the plaintiff then the suit can be dismissed if the defendant denies the claim of the plaintiff and if he admits to any claim the court can pass an order against him on the ground of his admission. When any suit is dismissed or an ex-parte order is passed then it can also be set aside if there is sufficient reason behind the absence of a party. If the court is satisfied with the reason of absence then it may set aside the order of dismissal or an ex-parte order. During all these
procedures the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte order. On one hand, the courts are free to dismiss any case in the case of non-appearance of any party to the suit which is also the need of the hour keeping in view a large number of cases which are pending in the courts. But at the same time, the courts are bound to continue the proceedings even in the cases where the non-appearance of any party is due to any special circumstances established by such a party. This is important in order to uphold the ultimate objective of every judicial system which is the welfare and creation of an egalitarian society. BIBLIOGRAPHY PRIMARY SOURCES STATUTE
